Friday, July 23, 2004

Civil Unions vs Same-sex Civil Marriages

What is the difference between “civil marriages” and “civil unions?” A great deal. Someone recently sent me a newspaper article that says that “civil marriages” are just shorthand for “same-sex marriages” and that nobody should accept “civil marriages” for this reason. They argued that a split between “civil marriages” and “religious marriages,” the one same-sex inclusive and the other not, is a bad idea.

This argument is partly correct and partly wrong.

It is partly right because same-sex civil marriages are exactly what same-sex advocates want - - the attainment of such a category in law would give them everything they have sought except one thing. What is wrong about the argument, as far as it went, is that it failed to see how the argument is essentially anti-religious - - the exclusion of religion from society being the second thing that some same-sex advocates seek.

Many of those arguing about changing marriage would like to see religions driven out of the public sphere by “getting hold of the secular conceptions”, such as marriage, and calling them “civil” and religious ones, the ones that would (for a time) exclude acceptance of same-sex marriages - - “religious.”

Mind you, the confusion about what marriage actually is, began some time ago when we created the notion of a “civil marriage” for those who didn’t want a religious marriage and got the State to do it rather than, as we ought to have, had non-religious groups and not the State perform such marriages.

Then, to compound the confusion, we decided, sometime in the early 1970’s to “create” marriages for those who didn’t want marriage at all. It was decided to call these deemed marriages “common-law” marriages. Live together for a certain period of time “as husband and wife” and, voila (!) you are to be considered married.

Of course, the statistics of such “deemed marriages” (the Law Commission of Canada Report Beyond Conjugality, 2001 calls such non-marriages “ascriptive marriages”) show that they are very different from real marriages, last much less time and produce far greater poverty. No matter. In a world where many of the radical elites seek to take us precisely “Beyond Conjugality” we just dissolve and dissolve and ignore the stats when they suggest that there is any real difference between committed intentional marriages and what used to be called “shacking up.”

The important problem with splitting marriage into a “civil” concept and a “religious” one is that we are all (religious and non) members of “civil society” so one ought not to split it into two different conceptions.

Recent court cases show that to do so will give a “trump rights” upper-hand to those who claim the constitutional stamp of approval - - and that is those who want “same-sex inclusive” marriages.

See what happens here? By thinking of the “civil” this way - - as an alternative, stripped of religions, religion is culturally marginalized. This is exactly what those who detest religion want.

Religions are part of the secular. Religions are part of the civil.

The proper thing for the State to do, faced with disagreement about the nature of marriage that go to the very core of what marriage is, is to get out of marriage as the relevant factor for the determination of State benefits. There should be no marriages (civil or religious) that the State should care about. Leave “marriage” to those who have some kind of theory about it. The non-religious marriages will be tiny in number in comparison with traditional marriages in any case.

What the State should concern itself with is a genuinely “civil” registration procedure open to any two people who wish to register for benefits. Gays and lesbians, like heterosexuals, could register their “unions” and no one cares whether such unions are or are not sexual.
We have all heard about “Aunt Agatha and her niece” and the argument has always been (with respect to Registered Domestic Partnerships) “why can’t Aunt Agatha get benefits if she is supporting her niece?” Why indeed?

This is the way that the State can regulate benefits to people it deems needy or in dependent relationships.

Why should a State that is supposedly not concerned with what goes on in people’s bedrooms, concerned that their relationships be sexual as a condition of benefits? After all, haven’t the Courts ruled recently that “procreation” is not a necessary aspect of marriage anyway? No two lesbians and no two gay people can ever have children without involving someone of the opposite sex and all kinds of people can adopt whether or not their relationships are sexual.

The State should get out of “marriage” and if atheists and agnostics wish to have a “marriage” ceremony, let them have one in a non-governmental social club that will give them one. I understand that the Canadian Humanist Association has been, for some years, of the view that it should be able to perform marriages as well as religious institutions.

Fine then.

What the same-sex marriage challenges should not result in is another attempt to define the “secular” as “non-religious” so as to exclude religions from our common social life. We should recall that back in 2002 same-sex advocates tried to get the Canadian Supreme Court to adopt a religiously exclusive idea of the “secular” and failed to do so. They wanted the use of the term “secular” to mean that in “secular” society, nothing religious could be significant. They wanted dominance. They were, as an old philosopher once said, simply “atheistic theocrats.”

In Chamberlain v. Surrey School Board No. 36 (the case involving “gay books” in the kindergarten to Grade two classes back in 2002) all nine judges of the Supreme Court of Canada refused to define “secular principles” in such a way that religious people were, by definition, outside it. They did this because to find otherwise would have meant that religious believers were second-class citizens over against atheistic believers and agnostic believers who would dominate the “secular.”

Now they are trying to have a second bite at the cherry by gaining control of a supposedly neutral “same-sex inclusive civil marriage category.”

Religions are here to stay. They are in the secular. For this reason there should not be a conception of “civil/gay marriage” that dominates the state and leaves religious conceptions of marriage as second-rate “non-state” options.

In the current state of disagreement, all that can be fairly done is to get the government (to which we all have an equal right of participation) out of marriage entirely, leave different groups to have their own conceptions of marriage (or not) and have a sexually conduct blind category that allows any two persons to register for benefits as long as they satisfy whatever the society deems necessary for a benefits regime. The category isn’t about children or so many same-sex couples wouldn’t now (as they are) be getting benefits for their same-sex partners.

There will likely be a need for Federal and Provincial co-operation as to what sorts of benefits and obligations attach to civil registration in the future but lets not confuse marriage with things that are not marriage.

Why should benefits turn on what people do with their genitals? Why indeed. The claim by same-sex advocates for recognition of their sexual preferences should end, where Trudeau once said it should, at the bedroom door. If same-sex advocates insist on public recognition of what they do with their private parts, too bad.

I for one don’t want to know whether someone is heterosexual or homosexual as a condition of them getting benefits. It is time to move the public dimension of human sexuality back where it belongs - - not in the closet, but the room leading off of it in some other, and private, part of the house.

Iain T. Benson ©

(Note: Click on CENTREBLOG: Volume 36 - to view the National Post's article endorsing the Centre's argument on civil unions)